A Decent Respect to the Opinions of Mankind

by Catherine Powell

In reading Chris Borgen’s incisive post on Oona Hathaway’s masterfully written article, I was reminded of the American Declaration of Independence. The 1776 Declaration boldly declared, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” At first blush, it may seem counterintuitive that the American Declaration reflected a concern with opinions or practices beyond our borders, at the very moment this small band of patriots was declaring its independence. At the same time, American independence occurred within a context of the new country’s inherent interdependence with the rest of the world – a recognition present even at the Founding. In other words, the only way in which the U.S. could envision itself as “a shining city or a hill,” is if it recognized the “valleys and plains” in its midst. Therefore, as Vicki Jackson perceptively notes, comparativism is a key component toward alternatively appreciating or criticizing American exceptionalism.

This then brings me to a central puzzle Professor Hathaway confronts in her article. Why is it that the international law making in the U.S. has flourished and expanded in certain fields – for example trade – even while it has stagnated in other areas – such as human rights? (Note that this is a separate question from whether ratification of human rights treaties leads to an improved human rights record — a topic Hathaway has addressed elsewhere). Many observers approach the gap between the flourishing of international lawmaking in trade and its stagnation in human rights as a question of substance rather than as a question of process. It turns out, Hathaway tells us, that this gap reflects the fact that the process by which international law is made in the trade area is more likely to be by congressional executive agreement (i.e., NAFTA) while the process by which international law is made in the human rights area is exclusively by treaty (i.e., the Genocide Convention).

Along the lines of Martin Lederman and David Golove in their post, I agree with Hathaway that by including the House of Representatives and dropping the supermajority requirement for the Senate, the process by which congressional executive agreements are made is more democratically legitimate than the treaty process. This is not to say that treaties are democratically illegitimate, but, as I have explored elsewhere, the treaty process has its deficits. At a moment when the public is becoming more directly involved in innovative and exciting ways at an international level (whether in the context of demonstrations at international trade negotiations or more formal participation as nongovernmental observers in United Nations (UN) human rights treaty bodies), by contrast at the national level, the public is, at best, less involved or even aware of treaties, and, at worst, skeptical of the efficacy and legitimacy of international institutions that monitor and support enforcement of treaties. Indeed, in the area of human rights, an important new public opinion poll by Opportunity Agenda demonstrates that while Americans are extremely open to the language and values of human rights, Americans are more reticent about international institutions that monitor and enforce human rights treaties. Perhaps then it’s not surprising that while over a hundred nongovernmental organizations went to Geneva last month to participate in the U.S. compliance hearing before the UN Committee on the Elimination of Racial Discrimination (CERD), Senator Barack Obama did not mention CERD in his groundbreaking speech on race earlier in the week.

In a later post, I’ll return to the role race has played in the development of U.S. treaty practice– an issue on which Hathaway provides important new insights.

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